15.6.1 Prevalence of exposure to secondhand smoke in the home
Secondhand smoke (SHS) causes or exacerbates a range of serious health conditions in children and non-smoking adults, including cardiovascular disease, respiratory disease, and cancer (see Chapter 4). Children are particularly vulnerable to the harms of secondhand smoke in homes and cars, given their lack of autonomy and the long hours they spend in these environments. Disadvantaged groups, such as those living in low socioeconomic areas, are also more likely to be exposed to secondhand smoke at home (see Section 9.1).
Conversely, people who smoke who keep their home smokefree are more likely to be younger, male, and more highly educated. Smokefree homes are also associated with the presence of non-smokers, particularly children, lower cigarette consumption (or addiction) level, and interest in quitting.1 In Australia, only a small minority of households with children and non-smokers allow smoking inside the home—see Section 4.5 for a detailed overview of the prevalence of exposure to secondhand smoke in the home.
15.6.2 Factors affecting adoption of smokefree homes
15.6.2.1 Policies and legislation
Increasing prevalence of smokefree public places and workplaces has been associated in English-speaking countries with increasing numbers of smokefree homes.1-4 Despite initial concerns regarding potential displacement of smoking into the home following smokefree legislation, legislative bans on smoking in public places appear to encourage people to establish voluntary home smoking restrictions through their influence on social norms.3,5-15 Public smoking bans may also lead to reductions in social inequalities in exposure to secondhand smoke among children.16
While Article 8 of the WHO Framework Convention on Tobacco Control (FCTC) requires ratifying states to implement measures to protect people from smoke exposure in indoor workplaces, public places and public transport, these obligations do not extend to addressing secondhand smoke in the home. The WHO Guidelines for Implementation of the FCTC states, with respect to Article 8, that “[p]ublic education campaigns should… target settings for which legislation may not be feasible or appropriate, such as private homes”.
Legislation which bans smoking in any private home would be difficult for parliaments to enact due to potential ethical and civil liberty arguments. However, there is a strong rationale for legislation protecting residents from smokedrift from neighbouring properties. Such legislation would not just protect people’s right to safe enjoyment of their own properties, but would also reduce health inequalities by reducing SHS exposure in children living in more disadvantaged areas where housing density tends to be higher and by shifting social norms to denormalise smoking at home.17
15.6.2.2 Education campaigns
Education campaigns about smoking at home have become a regular part of tobacco control programs. Common themes include raising awareness of the health effects of secondhand smoke on children and encouraging parents to either quit or smoke outside.18 In Australia, there is some evidence that these campaigns have been moderately helpful in increasing the number of people who make their homes smokefree.19-21 Education campaigns involving the use of new media may present a low-cost platform for educating families about the importance of not smoking in the home.22 However, there are likely to be complex social and cultural factors which may affect the extent to which families engage with information on this topic.23,24 This may include structural barriers such as a lack of awareness about the impacts and harms of SHS exposure and limited health literacy, particularly for marginalised and at-risk groups.25
At an individual level, while there have been some successful community and healthcare-based interventions,26-31 evidence about the effectiveness of such programs is limited.32 Interventions by healthcare professionals who provide routine child healthcare may be effective in preventing maternal smoking relapse, thereby reducing children’s exposure to secondhand smoke.32 However, standard care interventions may not be sufficient to produce behaviour change in mothers who smoke from low-income communities, who may require more intensive behavioural intervention.33
A 2018 Cochrane review examining the effectiveness of interventions designed to reduce children’s exposure to secondhand smoke concluded that while a small number of interventions targeting parents and carers have been shown to reduce exposure and improve children's health, the features of effective interventions remain unclear and the overall evidence base poor quality. The authors also found no clear evidence of differences in levels of success across settings, including well‐child, ill‐child and community contexts, and limited support for the delivery of more intensive counselling interventions to parent(s).34 Tobacco control efforts focused on reducing the prevalence of smoking across the entire population may do more to reduce children’s exposure to secondhand smoke than efforts aimed directly at individual parents.1
Some evidence suggests that efforts aimed at educating teenagers about the health effects of smoking may result in an increase in the number of families who make their homes smokefree. Research conducted in Greece found that a school-based intervention program which aimed to educate middle-school students about the importance of tobacco control, resulted in an increase in the adoption of smokefree rules at home.35 The authors concluded that children may be capable of acting as effective vehicles for the delivery of non-smoking messages from school to home.35
Some research has suggested that the provision of personalised feedback about secondhand smoke exposure in the home (such as measuring the level of indoor particulate matter in the home and providing these measurements to parents together with information regarding health-based exposure guidelines) may assist in motivating parents to stop smoking in the home.36-38 A randomised trial in the US found that real-time feedback for air particle levels and brief coaching reduced fine particle levels in homes with people who smoke and young children.39 However, even after the successful implementation of interventions that reduce tobacco smoke pollution in homes, contamination remains. Multifaceted individual and population-level strategies are likely necessary to effectively eliminate exposure.22
15.6.3 Benefits of smokefree homes
Along with reducing children’s and non-smokers’ exposure to the harmful health effects of secondhand smoke, in its comprehensive evidence review published in 2009, the International Agency for Research on Cancer (IARC) concluded that smokefree homes can also have positive effects on smoking behaviours. Such restrictions led to reduced adult smoking—both through reduced consumption and through supporting quit attempts. Smokefree homes may also reduce tobacco use among young people, with evidence showing that fewer teenagers of non-smoking parents who live in smokefree homes initiate smoking compared to children from a home that is not smoke-free.1
15.6.4 Multi-unit housing
Several studies have documented significant transfer of secondhand smoke between dwellings in multi-unit apartment complexes.40,41 Research conducted in Australia and overseas suggests that people living in multi-unit housing are more likely to be exposed to secondhand smoke than those living in separate housing.42-46 Israeli research indicates that there is a 3.6 times greater likelihood of experiencing tobacco smoke incursion living in multi-unit housing compared to living in what were described as ‘private homes’.47,48 A pilot study conducted in Singapore found that among multi-unit housing residents, those exposed to SHS from neighbouring households or from within the home were subjected to higher particulate matter exposure levels leading to poorer self-reported respiratory health.49
Children in apartments have been found to have higher average cotinine levels (an indicator of tobacco smoke exposure) than children in detached houses.43 A Korean study of multi-unit housing found that more than half of the homes without people who smoke had secondhand smoke infiltration, which was associated with wheeze, rhinitis, and eczema symptoms in children.50 No safe level of exposure to secondhand smoke has been identified.51
Air sealing and modifications to ventilation can reduce, but not completely eliminate, smoke drift from apartments where residents smoke indoors.52 Studies measuring air-nicotine concentrations and particulate matter have shown that air pollution increases in homes and common areas located adjacent to areas where smoking occurs.40,53,54 This is because smoke can easily spread via gaps in door and window jambs, mechanical ventilation and air conditioning systems, elevator shafts, hallways, stairwells, cracks in walls, balconies and courtyards.54 There is some evidence to suggest that residents living on higher floors in multi-level apartment buildings may be at risk of increased levels of secondhand smoke exposure, as smoke tends to accumulate at higher floors.55
15.6.4.1 Australian regulations on smoking in multi-unit housing
Interest in and the need for protecting residents from secondhand smoke in multi-unit developments is growing in Australia as high density living continues to increase. In 2009, the National Preventative Health Taskforce recommended state and territory governments take action to “protect residents from exposure to smoke-drift in multi-unit developments”.56 Action item 10.4 of the National Tobacco Strategy (2022-2030) calls for federal, state and territory governments and non-government organisations to “Monitor the issue of smoking and smoke-drift at residential premises and strengthen policy and regulatory approaches to increase the number of smoke-free homes, including in social housing and multi-unit housing.”57
While smoking is banned in enclosed common or shared areas of multi-unit housing in several Australian states and territories, private living areas are generally exempt from these bans – see Table 15.6.1. In all states and territories, laws which ban smoking and secondhand smoke from tobacco products also extend to aerosol from e-cigarettes (vaping).i However, in WA, this only extends to e-cigarette aerosol in enclosed workplaces.ii
NSW, Queensland and Victoria have adopted legislation to ban smokedrift (i.e. secondhand smoke that infiltrates a neighbour’s unit or common area) in multi-unit housing. It may also be possible for owners corporations to agree to adopt their own by-laws or rules banning smoking in both common areas and private living areas.
Where an owners corporation does not adopt its own set of rules or by-laws, the ‘model rules’ or ‘model by-laws’ set out in the relevant state/territory regulations will apply. In most jurisdictions, the model rules or by-laws include a general provision prohibiting residents or visitors from causing a ‘nuisance’ or ‘hazard’ to other residents.iii Although such provisions do not specifically refer to smoking, it may be possible for residents to rely upon these general provisions to prevent others from smoking on common property or even in private living spaces.
In 2006, for example, the then New South Wales Consumer, Trader and Tenancy Tribunal (now the NSW Civil and Administrative Tribunal (NCAT)) upheld a case brought by occupants of an apartment against their smoking neighbours, requiring them to stop smoking in their adjacent apartment because of smoke drift.58 The occupants relied on a general by-law which prohibited residents from causing a nuisance to other occupants. In 2011, the owners of a block of apartments in Ashfield, Sydney agreed to a by-law banning smoking anywhere within the building and on balconies, making the building the first multi-unit dwelling in Australia to become 100% smokefree. Furthermore, in the case of Solerno v Proprietors of Strata Plan No 42724,iv the Supreme Court of New South Wales confirmed the validity of a by-law adopted by an owners corporation which banned smoking on common property and within any private living area. However, a number of similar cases brought before Tribunals in Queensland were dismissed based on insufficient evidence to meet the test of nuisance at law.v
Given that general nuisance or hazard provisions have been applied inconsistently between jurisdictions, a review of strata laws in Australia recommended that state and territory governments reform their strata laws to provide clear legislative recognition that secondhand smoke may be considered to be a nuisance or a hazard.59 The review also recommended that state and territory model by-laws include a specific rule addressing smoking, and that owners corporations being given explicit powers to make by-laws that regulate or completely ban smoking. New South Wales, Queensland and Victoria have model by-laws which specifically address the issue of smoking in multi-unit housing.
In NSW, model by-laws are contained in the Strata Schemes Management Regulation 2016 (NSW), and include a ‘tier’ of by-laws regarding smoking from which an owners corporation can choose. Where an owners corporation has not made a selection between the tiers, the ‘default’ tier will apply. The ‘default’ by-law prohibits smoking on common property, but not in private living areas. However, under the default by-law an owner or occupier has an obligation to ensure that smoke from a private living areas does not penetrate common property or any other private space.
In Victoria, the model by-laws (known as the ‘model rules’) are contained in the Owners Corporations Regulations 2018 (Vic). From 1 December 2021, the model rules include a specific rule (model rule 1.4) addressing smoking, which requires a lot owner or occupier in a multi-level development to ‘ensure that smoke caused by the smoking of tobacco or any other substance…on the lot does not penetrate to the common property or any other lot.’60 There is no similar rule for single-level developments. As a result, residents in single-level settings in Victoria are unlikely to be able to rely on the model rules to address the issue of smoking. Quit Victoria has labelled this distinction between multi-level and single-level developments problematic, and has recommended that model rule 1.4 be extended to ensure residents of single-level developments are protected from the harms of secondhand smoke exposure.61
In 2013, the Queensland Government commenced a review of Queensland’s property laws and considered (among other matters) the issue of smoke infiltration. The regulation of smoking in private lots and on common property was one of the issues raised during stakeholder meetings.62 The consultation sought feedback on a proposal to empower owners corporations to prohibit smoking on balconies, or where a structure is within four metres of another structure on an adjacent lot, as well as any other ideas regarding how smoking could be dealt with by owners corporations. The Options Paper for the review noted: “The law has increasingly recognised a need to protect non-smokers from the harmful effects of second hand smoke in public areas and workplaces. There is little reason not to extend this protection to people in a community title scheme. Residential bodies corporate are one of the only places of concentrated occupation to which no power is given to restrict (or prohibit) smoking except on common property.”62
A final report was released in 2017, and recommended: “A by-law prohibiting smoking in an outdoor area that is part of a lot (including balconies, courtyards, etc) or on common property (including common property subject to an exclusive use by-law) should be enforceable against lot owners and occupiers if: the original owner includes the by-law in the schedule of by-laws attached to the first community management statement (CMS) for the scheme; or the body corporate adopts the by-law by a resolution without dissent. Aside from this different threshold required to adopt the by-law, a no smoking by-law will be added to the CMS and enforceable in the same way as any other by-law for the scheme. Amending or removing a no smoking by-law will also require a resolution without dissent. For the removal of doubt, the adoption of this recommendation will require a change to the power of the body corporate to regulate activity so that prohibition on smoking in an outdoor area that is part of a lot or on common property where that smoke drifts to an adjacent lot is permissible and not unreasonable or oppressive.”63 In September 2020, the Governor in Council made a number of new regulations relating to various recommendations made at the conclusion of the review. The issue of smoking was not addressed as part of this suite of new regulations.64
A decision handed down in December 2021 by the Office of the Commissioner for Body Corporate and Community Management (‘the OCBCCM’) confirmed that smoking can amount to a contravention of the general ‘nuisance’ provision contained in section 167 of the Body Corporate and Community Management Act 1997 (Qld) (‘the BCCM Act’).65
Section 167 provides that the occupier of a lot in a community titles scheme must not use the lot or common property in a way that ‘causes a nuisance or hazard’.66 In its decision, the OCCBM concluded that tobacco smoke drifting into the applicant’s apartment amounted to a ‘hazard’ and was therefore considered a breach of section 167.65 The landmark decision was labelled a ‘game changer’ for residents by strata law experts in Queensland.67
In November 2023, the Queensland Parliament passed the Body Corporate and Community Management and Other Legislation Amendment Act 2023 (Qld) to further address smokedrift under the BCCM Act. The amendments commenced 1 March 2024 and permit bodies corporate to make by-laws that prohibit or restrict smoking on common property and on all or part of an outdoor area of a lot, including balconies, courtyards, patios, and verandahs (but not the inside area of a lot) and make clear that an occupier (or guest) who regularly exposes others to smokedrift causes a hazard or nuisance in breach of section 167. Smoking in enclosed common areas of multi-unit residential accommodation also continues to be prohibited under the Tobacco and Other Smoking Products Act 1998 (Qld).68
The Australian Capital Territory (ACT) recognised smoke-drift in multi-unit developments as part of its work on restricting places of tobacco use under its plan ‘Future directions for tobacco reduction in the ACT 2013–2016’.69 In 2018, the ACT Government released a fact sheet on managing smoke drift in multi-unit developments. It recommends using existing by-laws in the Unit Titles (Management) Act 2011 to address smoke drift that prohibit hazards or nuisances, or the mechanism whereby an owners corporation can move to amend rules.70
15.6.4.2 International trends in regulation of smoking in multi-unit housing
Internationally, there are growing calls for smoke-free multi-unit housing policies to protect the health of occupants.71,72 In particular, smoke-free laws and policies affecting multi-unit housing are becoming more prevalent in the US. Since 2009, the US Department of Housing and Urban Development has been strongly encouraging public housing authorities to adopt smoke-free policies. On 30 November 2016, the Department issued a final rule requiring the Public Housing Authorities to adopt and implement a smokefree policy for all of their public housing properties by 31 July 2018.73 According to the final rule, the relevant policy must prohibit the use of tobacco products in all public housing living units and other interior areas (such as hallways, administrative offices, community centres, day care centres, laundry centres and similar structures), as well as outdoor areas within 25 feet (7.6 metres) from public housing.74
Laws addressing smoking in multi-unit housing are also becoming more prevalent among US state and local governments. For example, state law in Utah recognises that tobacco smoke that drifts into a residential unit may be considered a ‘nuisance’.75 Across the US, more than 60 cities and counties have adopted local laws requiring all multi-unit housing in the community to be smokefree.76 Oregon and Maine mandate that rules (or absence of rules) about smoking must be disclosed to potential renters.59 However, the US Centre for Disease Control (CDC) states that as of 30 June 2024, only 16 states, American Samoa, the Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands have restrictions in place on smoking in government or private multi-unit housing facilities, which the CDC has mapped: www.cdc.gov/statesystem/factsheets/multiunithousing/MultiUnitHousing.html.
In Canada, while there are no federal laws that restrict smoking in private areas of multi-unit housing, laws in most Provinces and Territories prohibit smoking in common areas. The Smoke Free Ontario Act, for example, prohibits smoking in common areas of multi-unit buildings in Ontario. Saskatchewan and the Yukon have implemented comprehensive smoking bans in publicly owned or leased properties.77 Some municipal governments have also adopted smokefree policies in their public multi-unit housing and no law prohibits privately owned complexes from voluntarily adopting 100% smokefree policies.59
In Thailand, new laws came into effect in August 2019 which state that smoking inside the home can be considered a form of domestic abuse if it has a negative effect on other members of the household.78
In New Zealand, the Christchurch City Council is progressively making its public housing stock smokefree through the inclusion of a condition in its leases that prohibits smoking in all indoor areas.79 A similar approach has been adopted by the Wellington City Council.80
In Singapore, the current system for resolving concerns for residents exposed to SHS in multi-unit housing places a high burden on complainants. In order to obtain a court order to stop their neighbour smoking in the home, the complainant must satisfy a high evidentiary threshold. The system treats the issue as a neighbourly nuisance rather than a public health threat.81
15.6.4.3 Benefits of smoke-free policies in multi-unit housing
Research undertaken in the US indicates that smokefree policies in multi-unit housing may reduce resident exposure to secondhand smoke,82 decrease daily cigarette consumption amongst residents who smoke, encourage smoking cessation and increase quit attempts.83 Another US study found that while low-income people who smoke were significantly less likely to live in smokefree homes, those who did live in such homes were much more likely to be successful quitters, suggesting that smokefree housing policies may be particularly beneficial for disadvantaged groups.84
In addition, cost analyses indicate that there are considerable economic benefits associated with implementing smokefree policies in multi-unit residences, and that these benefits outweigh any implementation costs.41, 85 Landlords have tended to overestimate the negative commercial impact of proposed smoke-free policies.86,87 Following implementation, the actual impact of smokefree policies on vacancy and turnover has been shown to be negligible, neutral or positive.88,89 A study of landlords who had implemented smokefree policies in apartment buildings in Douglas County, Nebraska found that anticipated adverse consequences generally did not occur.88 One US study estimated that prohibiting smoking in all US subsidised housing would result in cost savings of approximately US $521 million per year.90 The estimated savings were calculated based on reduced health care costs, reduced renovation costs and reduced incidence or risk of smoking related fires. Several high-rise apartment building fires in Melbourne, Australia have been caused by cigarettes91 (see also Section 3.19).
However, policy alone appears to be insufficient in reducing exposure to and changing of smoking behaviours. Several US studies have reported challenges with compliance since implementing smoking bans in multi-unit housing.92-95 One such study focused on evaluating the 12-month impact of federally mandated smokefree public housing in the US.95 The study found that while compliance with smokefree rules was initially high, it appeared to wane significantly after one year. The authors of the study concluded that the simple adoption of smokefree rules may not be sufficient and further research is required to identify best practice implementation approaches to optimise the success of smokefree policies in public housing.95 However, other research evaluating smokefree public housing in the US has demonstrated that the majority of residents held positive attitudes towards the smokefree rules following implementation and reported experiencing reduced exposure to secondhand smoke as a result of the policy.96 In addition, a significant proportion of people who smoke (80%) reported making at least one positive change in their smoking habits since the policy was implemented (with 6.4% reporting the policy had motivated them to quit).96
15.6.4.4 Public support for smoking bans in multi-unit housing
Although there is limited Australian research on support for smoking bans in multi-unit housing, only a small minority of Australians allow smoking in their home (see Section 4.5), suggesting that most people would support such measures. A 2017 survey found that 18 per cent of Victorians had been exposed to smoke drift at home in the previous week, and 85 per cent supported a ban on smoking in shared corridors, stairwells or laundries.97 Cancer Councils across Australia report being contacted by many distressed residents of multi-unit housing, as well as landlords and representatives of owners corporations, looking for advice in how to eliminate secondhand smoke exposure.59
International research has shown high levels of interest by owners, occupiers and managers in adopting smokefree policies.98 A Canadian survey found that 46% of apartment dwellers had experienced smoke from a neighbour seeping into their apartment and 64% would prefer to live in an entirely smokefree complex.99 In a survey published in 2010, the majority of apartment owners in New York expressed interest in introducing smokefree policies.100 Prior to the implementation of smokefree public housing, most US adults expressed support for such a ban, although support was lower among people who smoked.101 Although the US has banned smoking in public housing, the ban does not extend to private rentals that are subsidised for low-income residents. A survey of US adults found high levels of support for extending the bans to all indoor areas of multi-unit buildings that house such residents, even where some units were non-subsidised.102 Another US study found multi-unit housing residents living with children strongly supported smokefree multi-unit housing.103
Research has demonstrated there is some support for total smoking bans amongst people who smoke living in multi-unit housing. A study of residents living in multi-unit housing in the US, Canada and the UK found that 36% of people who smoke reported they would prefer a building policy prohibiting smoking in all areas (including private living areas, common areas and exterior grounds).104 Another survey of US adults found that a majority of people who smoke (51.4%) supported prohibiting smoking in multi-unit housing.105 In New Zealand, research has demonstrated a high level of support for smokefree policies among public housing residents who smoke, with 74% of smokers reporting they were not opposed to the introduction of smokefree rules.79
15.6.5 Home health and community care workers
Community nurses and other health and welfare workers may be repeatedly exposed to secondhand smoke while working with and treating clients in their own private homes or in community supported accommodation outside institutions.106,107 Secondhand smoke exposure among home care workers is an occupational health and safety issue.
A 2022 study in Scotland found that a substantial fraction (21%) of home visits involved potentially harmful concentrations of secondhand smoke particulate matter, with the most severely impacted workers potentially facing an increased risk of acute and chronic illness as a result.108 The study recommended the adoption of mitigation measures such as educating clients to leave more time between smoking indoors and a home care visit, the use of fitted N95 masks by workers and/or air filtration devices.
Some institutions in the UK and Australia insist as a matter of policy that clients do not smoke in the presence of home health and community workers. The Aged and Community Services Association of New South Wales and the Australian Capital Territory for instance advises agencies that all clients should be advised not to smoke in the presence of workers.109
15.6.6 Motor Vehicles
15.6.6.1 Rationale for restricting smoking in cars
Australians spend a considerable amount of time in their cars. In Australia in 2012, approximately 7 in 10 (71%) adults travelled to work or full-time study primarily by car. The majority (88%) also used a car to get to other places, such as shopping or visiting family and friends.110 A 2018 survey found that almost two in three Australian children (64%) were being driven to school most days.111 The family car has therefore traditionally been a source of significant secondhand smoke exposure among children.112-114
The low air change rates of motor vehicles—designed to shelter occupants from air pollutants entering from outside a vehicle—also work to concentrate pollution from any sources inside the vehicle. Smoking just one or two cigarettes inside a car can substantially increase passengers’ exposure to tobacco smoke pollution,115-117 even with the windows down.113,118,119 This concentrated exposure can lead to serious health outcomes.
A 2007 Australian study found that children exposed to tobacco smoke in the family vehicle were more likely to develop a persistent wheeze than those exposed in the home only.120 Further, such exposure in cars is associated with an increased risk of smoking uptake in adolescence.121 A study published in 2008 showed an increase in symptoms of nicotine dependence in children who had never smoked but who were exposed to tobacco smoke in cars.122 A 2021 meta-analysis published in the Lancet found that smokefree car policies were associated with an immediate reduction in child tobacco smoke exposure, which could translate to respiratory health benefits.123
Previously, private cars were regarded as the domain of the domestic environment and therefore beyond the reach of regulation.124 Public acceptance of smokefree policies in the hospitality industry, concern about the health and rights of children as well as increasing regulation of the behaviour of motorists—including prohibition of the use of mobile phones—have likely made the public and governments more amenable to prohibiting smoking in cars when children are present.2,125-130
In October 1995, a world-first study was published that measured support among adults in New South Wales for regulation of smoking in cars carrying children.131 A substantial majority of respondents agreed that it should be illegal to smoke in cars when travelling with children (72%), 27% disagreed and 1% were undecided. The majority of people who smoked (63%), also agreed with a ban.132
In November 1995, a working party on the effects of passive smoking of the National Health Advisory Committee released a draft report, The Health Effects of Passive Smoking. The working party recommended that the ‘legal prohibition of smoking in private motor vehicles during periods when minors are passengers should be considered by state and territory governments’ (p214).133
Results from a large-scale population health survey in New South Wales revealed that by 2008, the vast majority of adults (88.2%) reported that smoking was not allowed in their car, a significant increase from 2003 (81.2%). A significantly lower proportion of people in the lowest socio-economic group (84.8%) and young adults aged 16–24 years (82.1%) reported smoking was not allowed in their car compared with the overall adult population.
15.6.6.2 Legislation banning smoking in cars in Australia
All Australian states and territories now have legislation in force which prohibits smoking in cars while children are present. In all states and territories except WA, the ban extends to secondhand aerosol from vaping.
In June 2006, more than a decade after the issue of smoking in cars was first discussed in Australia, the Tasmanian Government released a discussion paper that included a proposal to ban smoking in cars carrying children in that state.134 In March 2007, a proposal to introduce legislation banning smoking in cars carrying children under 18 was announced.135 A Bill to amend section 67H(2) of the Public Health Act 1997 (Tas) was passed and came into force on 19 December 2007.vi
In February 2006, the South Australian Democrats proposed legislation to ban smoking in cars carrying children aged under 12,136 softening their previous position from a total smoking ban in cars. In August 2006, the South Australian Government announced plans to ban smoking in cars carrying children under the age of 16 with penalties of up to $200 applying. The Bill was passed in March 2007 and came into effect on 31 May 2007, World No Tobacco Day, making South Australia the first state in Australia to ban smoking in cars with children. The first reports of fines appeared in July 2007.137
In November 2006, the Parliamentary Secretary to the Commonwealth Minister for Health and Ageing issued a media release urging the states and territories to enact legislation banning smoking in cars.138 The possibility of national coordinated action for a ban was raised, but failed to be adopted at the December 2006 meeting of the Ministerial Council Drug Strategy.vii
In New South Wales, smoking in cars when children are present was banned under the Public Health (Tobacco) Act 2008 (NSW) from July 2009.
In 2009, the Tobacco Products Control Amendment Act 2009 (WA) was introduced into Western Australia’s State Parliament by Dr Janet Woollard as a Private Member’s Bill. The new law was passed and smoking in cars when children under the age of 17 years are present was banned in Western Australia from 22 September 2009.
In 2009, the Australian Capital Territory Government expressed concern about the issue of smoking in cars and released a discussion paper in 2009.139 On 20 October 2011, the Smoking in Cars with Children (Prohibition) Act 2011 (ACT) was passed. The Act came into force on 1 May 2012, and prohibits smoking in cars when a person under the age of 16 is present.
Similar bans were introduced in both Queensland and Victoria on 1 January 2010.140,141
The Northern Territory was the last Australian jurisdiction to introduce a ban on smoking in cars when children are present. The relevant legislative provision came into operation on 1 December 2014, and applies where children under the age of 16 are present.142
Table 15.6.2 provides a summary of legislation banning smoking in cars with children present in each Australian state/territory.
15.6.6.3 Restrictions on smoking in cars internationally
Like Australia, all Canadian provinces and territories have implemented bans on smoking in cars with children. At least nine US states—Arkansas, California, Louisiana, Illinois, Maine, Oregon, Utah, Vermont and Virginia—have banned smoking in cars when children are present, along with US territories Puerto Rico and Guam.143 The legislation in Guam also prohibits smoking in cars with pregnant women,144 and many states ban smoking in cars when foster children are present.143 In the State of New York, the Senate Health Committee is considering a Bill to prohibit smoking in vehicles where a minor less than 14 years of age is present.145 In Pennsylvania, the Senate Transportation Committee approved a bill to prohibit smoking in a vehicle with a child under 12 present, however the bill was paused indefinitely (i.e. never brought to a full Senate vote) on 9 November 2021.146
New Zealand, France, the Republic of Ireland, the UK, Mauritius, Bahrain, Cyprus, South Africa and the United Arab Emirates have also implemented bans on smoking in cars with children present. In March 2022, a German Council initiated an amendment to the federal Non-Smoker Protection Act to prevent drivers from smoking in their cars in the presence of minors or pregnant women.147 However, in 2023, the proposed law failed on the basis it placed an excessive restriction on civil liberties. The government in Spain included a proposal to ban smoking in cars in its ‘Comprehensive Plan for the Prevention and Control of Smoking 2021-2025’.148 The ban is yet to be implemented.
i See: Smoking in Cars with Children (Prohibition) Act 2011 (ACT) s 6 (definition of ‘smoke’); Public Health (Tobacco) Act 2008 No 94 (NSW) s 30(8) (definition of ‘smoke’); Tobacco Control Act 2002 (NT) s 4A; Tobacco and Other Smoking Products Act 1998 (Qld) sch 1 (definition of ‘smoke’); Tobacco and E-Cigarette Products Act 1997 (SA) s 4(1) (definition of ‘smoke’); Public Health Act 1997 (Tas) s 3 (definition of ‘smoke’); Tobacco Act 1987 (Vic) s 3 (definition of ‘smoke’).
ii See: Tobacco Products Control Act 2006 (WA) glossary (definition of ‘smoke’); Work Health and Safety (General) Regulations 2022 (WA) regs 50A (definition of ‘e-cigarette’, ‘smoke’), 50I; Work Health and Safety (Mines) Regulations 2022 (WA) regs 50A (definition of ‘e-cigarette’, ‘smoke’), 50I.
iii However, in some jurisdictions, the general nuisance provision is contained in the relevant State/Territory legislation (rather than in the model rules or by-laws of the particular State/territory). See, for example, section 167 of the Body Corporate and Community Management Act 1997 (Qld).
v See North Shore Apartments [2003] QBCCMCmr 505; Villas Mermaid [2005] QBCCMCmr 582; Bacala Park [2006] QBCCMCmr 412 to 417; Heritage Village Ormiston West [2007] QBCCMCmr 565; Norbury v Hogan [2010] QCATA 27; Sun Crest [2010] QBCCMCmr 524; Admiralty Towers QBCCMCmr 264; Carson Place [2012] QBCCMCmr 503.
vi See Public Health Amendment Act 2007 (Tas) s 4. http://www.austlii.edu.au/au/legis/tas/consol_act/pha1997126/
Related reading
Test your knowledge
References
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